LESTER v. COLVIN
Filing
19
MEMORANDUM OPINION AND ORDER Signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR., on 03/30/2015. IT IS ORDERED that Plaintiff's 13 MOTION for Judgment Reversing the Decision of the Commissioner is DENIED, that the Commissioners motion for judgment on the Pleadings 15 is GRANTED, and that this action is DISMISSED WITH PREJUDICE. A Judgment will be entered contemporaneously herewith. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHRISTOPHER K. LESTER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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1:13CV759
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Christopher K. Lester (“Plaintiff”) initiated
this action pursuant to Section 1631(c)(3) of the Social
Security Act (the “Act”), codified as amended at 42 U.S.C.
§ 1383(c)(3), to obtain review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying his
claim for Supplemental Security Income (“SSI”) under Title XVI
of the Act.
Plaintiff subsequently filed a Motion for Judgment
Reversing the Decision of the Commissioner (Doc. 13), and the
Commissioner has filed a Motion for Judgment on the Pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure
(Doc. 15).
motion.
Plaintiff has responded to the Commissioner’s
(Doc. 17.)
The administrative record has been
certified to this court for review.1
For the reasons set forth below, the Commissioner’s motion
will be granted, Plaintiff’s motion will be denied, and this
case will be dismissed with prejudice.
I.
BACKGROUND
Plaintiff received SSI benefits as a minor under Title XVI
of the Act based on disability. (Tr. at 13.)
After attaining
the age of eighteen, and in accordance with the governing law,
Plaintiff was reevaluated to determine whether he qualified to
receive SSI benefits as an adult.
(Id. at 13, 60-65.)
denied benefits initially and upon reconsideration.
13.)
He was
(Id. at
Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”), and after the hearing, the ALJ determined2 that
1
Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer (Doc. 9) and electronically (Docs. 10, 11).
2
“The Commissioner uses a five-step process to evaluate
disability claims.” Hancock v. Astrue, 667 F.3d 470, 472 (4th
Cir. 2012) (citing 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)).
“Under this process, the Commissioner asks, in sequence, whether
the claimant: (1) worked during the alleged period of
disability; (2) had a severe impairment; (3) had an impairment
that met or equaled the requirements of a listed impairment; (4)
could return to [his] past relevant work; and (5) if not, could
perform any other work in the national economy.” Id. A finding
adverse to the claimant at any of several points in this fivestep sequence forecloses a disability designation and ends the
inquiry. Even though Plaintiff received SSI as a minor, his
application was to be reviewed as if he were an adult applying
for benefits for the first time. See 42 U.S.C. § 1382c(a)(3)(H).
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Plaintiff’s disability ended on May 1, 2009.
(Id.)
Therefore,
because Plaintiff had not been disabled since that date, he was
not eligible for SSI benefits.
In her decision, the ALJ determined that Plaintiff had a
severe impairment, namely, mild intellectual disability.3
at 15.)
(Id.
The ALJ recognized that Plaintiff had been diagnosed
with and treated for attention-deficit hyperactivity disorder
(“ADHD”), depression, anxiety, Tourette syndrome, acid reflux,
and cervicalgia, but these conditions were not “severe”
impairments.
(See id. at 16.)
Although Plaintiff’s
intellectual disability “more than minimally impacts
[Plaintiff’s] ability to perform work-related functions,” the
ALJ found that Plaintiff’s impairments, “considered singly and
in combination, [did] not meet or medically equal” the severity
of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P,
app. 1. (Id. at 15, 17.)
The ALJ specifically considered
3
Effective September 3, 2013, the Agency replaced the term
“mental retardation” in Listing 12.05C with “intellectual
disability” since the former term “has negative connotations,
has become offensive to many people, and often results in
misunderstandings about the nature of the disorder and those who
have it.” Change In Terminology: “Mental Retardation” to
“Intellectual Disability”, 78 Fed. Reg. 46,499 (Aug. 1, 2013)
(to be codified at 20 C.F.R. pts. 404 and 416). Unless quoting
another source or authority, the court uses the updated term
here and recognizes that this change does not alter any of the
arguments made by either party.
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Listings 12.02, 12.03, 12.04, 12.05, and 12.06, defining various
mental disorders.
(See id. at 17.)
The ALJ determined that Plaintiff had the Residual
Functional Capacity (“RFC”)4 to perform a full range of work at
all exertional levels but with certain non-exertional
limitations, including that Plaintiff can follow only short,
simple instructions; can make simple work-related decisions; can
tolerate few workplace changes; can tolerate occasional
interaction with the general public, coworkers, and supervisors;
should not be required to read instructions or write reports;
and should not be required to perform mathematical computations.
(Id. at 21.)
Based on Plaintiff’s age, education, and RFC, the
ALJ determined that there were significant numbers of jobs in
the national economy that Plaintiff could perform. (Id. at 2324.)
As a result, Plaintiff had not been disabled since May 1,
2009, and was not entitled to SSI benefits. (Id.)
On July 23, 2013, the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s determination the
4
“RFC is a measurement of the most a claimant can do
despite [the claimant’s] limitations.” Hines v. Barnhart, 453
F.3d 559, 562 (4th Cir. 2006) (noting that administrative
regulations require RFC to reflect claimant’s “ability to do
sustained work-related physical and mental activities in a work
setting on a regular and continuing basis . . . [which] means
8 hours a day, for 5 days a week, or an equivalent work
schedule” (internal emphasis and quotation marks omitted)).
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Commissioner’s final decision for purposes of review.
(Id. at
1-5.)
II.
ANALYSIS
Plaintiff raises multiple overlapping arguments to support
his contention that the ALJ “erred by finding that Plaintiff
does not meet Listing 12.05(c).”
(Pl.’s Br. Supp. Mot. to
Reverse the Decision of the Commissioner (“Pl.’s Br.”) (Doc. 14)
at 2.)
However, as explained below, the ALJ’s decision was
rendered according to the governing law and is anchored in
substantial evidence.
Listing 12.05 provides the criteria by which the ALJ could
find that someone has an “intellectual disability.”
The Listing
defines “intellectual disability” as:
[S]ignificantly subaverage general intellectual
functioning with deficits in adaptive functioning
initially manifested during the developmental period;
i.e., the evidence demonstrates or supports onset of
the impairment before age 22.
The required level of severity for this disorder
is met when the requirements in A, B, C, or D are
satisfied.
. . . .
C. A valid verbal, performance, or full scale IQ
of 60 through 70 and a physical or other mental
impairment imposing an additional and significant
work-related limitation of function.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C.
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Where, as here, the paragraph C severity criteria are at
issue, the Fourth Circuit has described the first required
showing - that is, deficits in adaptive functioning initially
manifested during the developmental period — as “Prong 1.”
Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012).
The Prong
1 diagnostic criteria for a Listing 12.05 intellectual
disability includes two components — deficits in adaptive
functioning and an onset before age 22 — that must both be
satisfied in order for the Listing to apply.
Id. at 475.
The Fourth Circuit has broken the conjunctive paragraph C
requirements into two prongs with “Prong 2” requiring a valid
verbal, performance, or full scale IQ of 60 through 70, and
“Prong 3” requiring a physical or other mental impairment
imposing an additional and significant work-related limitation
of function.
Id. at 473.
The ALJ found that both Prongs 1 and
2 had been met (see Tr. at 17), and the parties do not contest
these findings. (Pl.’s Br. (Doc. 14) at 5; Commissioner’s Mem.
in Supp. of Mot. for J. on the Pleadings (“Commissioner’s Mem.”)
(Doc. 16) at 7.)
Therefore, the only issue for this court to
determine is whether there is substantial evidence to support
the ALJ’s determination that Plaintiff did not have a “physical
or other mental impairment” that imposes “an additional and
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significant work-related limitation of function.”
(See Pl.’s
Br. (Doc. 14) at 5.)
The regulations do not explicitly define an “additional and
significant work-related limitation of function,” but such an
impairment does not have to be disabling in itself.
See Branham
v. Heckler, 775 F.2d 1271, 1273 (4th Cir. 1985); see also Rice
v. Astrue, Civil Action No. 6:07CV016, 2008 WL 2233967, at *5
(W.D. Va. May 30, 2008).
In fact, the Fourth Circuit has held
that “an illness or injury imposes a significant limitation when
its effect on the claimant’s ability to work is more than slight
or minimal.” See Pullen v. Bowen, 820 F.2d 105, 109 (4th Cir.
1987); see also Rice, 2008 WL 2233967, at *5 (collecting cases).
The introductory paragraph to section 12.00 of the Listing
Requirements also equates the term “significant work-related
limitation” for purposes of 12.05C to the definition of severe
impairment used at step two of the sequential analysis employed
in a disability determination:
For paragraph C, we will assess the degree of
functional limitation the additional impairment(s)
imposes to determine if it significantly limits your
physical or mental ability to do basic work
activities, i.e., is a “severe” impairment(s), as
defined in §§ 404.1520(c) and 416.920(c). If the
additional impairment(s) does not cause limitations
that are “severe” as defined in §§ 404.1520(c) and
416.920(c), we will not find that the additional
impairment(s) imposes “an additional and significant
work-related limitation of function,” even if you are
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unable to do your past work because of the unique
features of that work.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A).
Prong 3 of
12.05C, therefore, “closely parallels a finding of a severe
impairment” and is satisfied if a limitation is more than slight
or minimal.
See Moon v. Astrue, Civil Action No. 6:08cv40016,
2009 WL 430434, at *4 (W.D. Va. Feb. 20, 2009).
In her decision, the ALJ found that Plaintiff’s mild
intellectual disability was a severe impairment. (Tr. at 15.)
The ALJ also noted that Plaintiff had been diagnosed and treated
for “attention-deficit hyperactivity disorder, depression,
anxiety, and Tourette syndrome.”
(Id. at 16.)
The ALJ
concluded, however, that “these conditions are not severe
because they do not result in an additional and significant
work-related limitation of function.”
(Id.)
Consequently,
Plaintiff could not prove that he met Prong 3 of Listing 12.05C.
In making this finding that Plaintiff’s other impairments
were not “additional and significant work-related limitation[s]
of function,” the ALJ relied on medical evidence which indicated
that Plaintiff had received little treatment since his 18th
birthday, and that his symptoms responded well to medication.
(Id. at 17-19.)
Specifically, the record shows that Plaintiff
was taking medication for his symptoms in November 2008, but
that he had ceased taking medication at the time of his
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consultative examinations in April 2009.
171.)
(Id. at 18-19, 162-65,
Plaintiff sought treatment again in October 2010.
at 18, 202.)
(Id.
At that time, Plaintiff’s primary care physician
diagnosed him with ADHD, a depressive disorder, and an anxiety
state, along with acid reflux and neck pain.
06.)
(Id. at 18, 202-
Plaintiff was prescribed Strattera and Celexa, which
stabilized his depressive disorder and anxiety.
197, 201, 206.)
(Id. at 18,
During examinations, Plaintiff also answered
questions appropriately and his judgment was normal.
(Id. at
18, 200, 205.)
Additionally, the ALJ noted that she had considered the
psychological reports of consulting examiners Rebecca J.
Kincaid, M.S., and Tom Keane, Ph.D., (id. at 18-19, 166-72), and
the report of the physical consultative examiner, Charles S.
Betts, M.D. (Id. at 19, 173-76.) The ALJ noted further that the
non-examining state agency examiner, Sharon J. Skoll, Ph.D.,
concluded that Plaintiff’s mental impairments did not meet or
qualify for a listing.
(Id. at 21, 178-83.)
Plaintiff contests the ALJ’s finding as to Listing 12.05C
in several ways, and this court addresses each argument below.
However, after reviewing the pleadings of the parties, the ALJ’s
decision, and the administrative record, this court finds that
these arguments are without merit.
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A.
Other Mental Impairments as Severe Impairments
In contesting the ALJ’s finding that Plaintiff’s other
impairments were not “additional and significant work-related
limitation[s] of function” for the purposes of Listing 12.05C,
Plaintiff contends the medical evidence establishes that his
combined mental impairments, that is, ADHD, depression, anxiety,
and Tourette syndrome, were severe and are an “additional and
significant work-related limitations of functioning.” (Pl.’s Br.
(Doc. 14) at 6-9.)
This court finds no error in the ALJ’s
analysis based on this argument.
The Commissioner uses the same test for determining whether
an impairment is “an additional and significant work-related
limitation” as when the Commissioner determines whether an
impairment is “severe,” that is, by determining whether the
impairments or combination of impairments significantly limit
the claimant’s physical or mental ability to do basic work
activities.
20 C.F.R. §§ 404.1520(c) and 416.920(c); 20 C.F.R.
pt. 404, subpt. P, app. 1, § 12.00.
“If the adjudicator finds
that such symptoms cause a limitation or restriction having more
than a minimal effect on an individual’s ability to do basic
work activities, the adjudicator must find that the
impairment(s) is severe . . . .” Social Security Ruling 96-3p,
Policy Interpretation Ruling Titles II and XVI: Considering
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Allegations of Pain and Other Symptoms in Determining Whether a
Medically Determinable Impairment is Severe, 1996 WL 374181
(July 2, 1996) (“SSR 96-3p”).
Plaintiff does not argue that his other mental impairments,
alone, constitute a severe impairment. (See Pl.’s Br. (Doc. 14)
at 8-9; Pl.’s Resp. (Doc. 17) at 2.) Instead, Plaintiff contends
that the ALJ did not consider whether his other impairments, in
combination, constitute a severe impairment.
(See id. at 8-9,
12.) This argument is not persuasive.
The ALJ’s analysis spends close to five pages evaluating
the allegations of Plaintiff and his mother as they relate to
his medical records and the evaluations of the consultative
evaluators, and the first sentence in this analysis indicates
that the ALJ was considering Plaintiff’s mental limitations
singly and in combination. (Tr. at 17-21 (“The claimant’s mental
impairments, considered singly and in combination . . . .”).)
Therefore, this court finds that the ALJ was in fact considering
all of Plaintiff’s mental impairments in combination to
determine whether they were severe and whether they constituted
an additional and significant work-related limitation of
function.
Furthermore, reviewing the record, the ALJ’s conclusion
that the combination of the other mental impairments was not
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severe is based on substantial evidence.
As explained by the
ALJ and discussed further below, the medical record here
demonstrates that Plaintiff received little treatment for his
other mental impairments, that the treatment he did receive was
both conservative in nature and effective in treating his
symptoms, and that no treating, examining, consulting, or nonexamining physician opined that he met the requirements of
12.05C.
Moreover, the ALJ properly acknowledged that Plaintiff
had been treated for ADHD, depression, anxiety, and Tourette
syndrome, but she found that they were not severe impairments.
A mere diagnosis of a condition is insufficient to prove
disability, and Plaintiff has failed to demonstrate any
additional significant limitation in his ability to work.
See
Gross v. Heckler, 785 F.2d 1163, 1165-66 (4th Cir. 1986).
As
the ALJ stated, “This evidence supports a finding that the
claimant’s depression, anxiety, attention-deficit hyperactivity
disorder, and Tourette syndrome would not result in additional
and significant work-related limitations of function.
(Tr. at
18.)
The record demonstrates that Plaintiff has only
sporadically been medicated for his mental impairments,
supporting the ALJ’s determination that Plaintiff’s other mental
impairments are not severe.
(See id. at 162-64, 168, 171, 199
-12-
(noting that Plaintiff has been receiving or not receiving
medication for his mental health issues over time).)
For
example, Plaintiff was not on any medication for his mental
impairments at the time of his consultative examinations in
April 2009, at which point he demonstrated no tics and denied
depression.
(Id. at 169, 171, 175.)
Such sporadic mental
health treatment, combined with a lack of demonstrated
limitations of function, shows that a mental impairment is not
severe.
See, e.g., Jones v. Callahan, 122 F.3d 1148, 1153 (8th
Cir. 1997).
Plaintiff contends that it was improper for the ALJ
to rely on this lack of treatment as a reason for finding that
an impairment is not severe.
However, numerous courts have
found that the ALJ may infer that the mental impairment did not
cause any workplace limitations if there is a lack of medical
treatment for a mental impairment.
See Gustafson v. Colvin, No.
1:10CV833, 2014 WL 791847, at *5 (M.D.N.C. Feb. 25, 2014)
(upholding ALJ’s finding of non-severity based in part on a lack
of mental health treatment during the relevant time period);
Mabe v. Colvin, No. 4:12-cv-00052, 2013 WL 6055239, at *5-6
(W.D. Va. Nov. 15, 2013) (noting that claimant’s minimal mental
health treatment supported finding that the claimant did not
have a severe mental impairment); Collier v. Astrue, No.
7:11-CV–68–D, 2012 WL 3095099, at *6 (E.D.N.C. June 22, 2012)
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(“The fact that plaintiff's depression appears to have been
controllable by medication provides further support for the
ALJ's finding that this aspect of her mental impairments was
nonsevere during the relevant period.”).4
Likewise, Plaintiff’s activities of daily living addressed
by the ALJ (Tr. at 19-20) indicate that Plaintiff’s other mental
impairments are not severe.
Plaintiff testified that he
performed chores around the house, including laundry, vacuuming,
and washing dishes.
(Id. at 35.)
He also stated that for two
months he helped his uncle at his uncle’s flea market stand by
loading and unloading merchandise, displaying merchandise, and
tending a stand while his uncle was away.
(Id. at 38-41.)
He
also helped provide some care for both his sisters, one of whom
was an infant.
(Id. at 43-44.)
His mother reported that he
could prepare light meals using the microwave, count change, and
play video games.
(Id. at 134.)
4
Plaintiff contends further that the ALJ erred by
misapplying Social Security Ruling 85-28 (“SSR 85-28”) when
determining that Plaintiff’s other mental impairments were not
severe, as “a finding of non-severity can be made only if said
evidence establishes only a slight abnormality or combination of
slight abnormalities that have no more than a minimal effect on
the claimant’s mental ability to perform basic work activities.”
(Pl.’s Br. (Doc. 14) at 10-12.) Plaintiff claims that by
considering frequency of treatment, the ALJ did not make this
requisite finding. (Id. at 12.) However, the analysis
contained in this section indicates that the ALJ examined
Plaintiff’s ability to do basic work activities by examining his
treatment history in conjunction with the medical evidence and
activities of daily living.
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During his consultative examination, Ms. Kincaid observed
that Plaintiff was polite, did not display any tics, displayed
judgment requisite for avoiding danger, and denied depression or
suicidal ideation.
(Id. at 169.)
Similarly, Dr. Betts noted
that Plaintiff was alert and oriented, and answered questions
appropriately with appropriate affect and mood during the
medical consultative examination.
(Id. at 174.)
Also, Dr.
Betts did not detect any mood swings or changes in affect during
the examination.
(Id. at 175.)
Dr. Keung W. Lee, Plaintiff’s
treating physician, prescribed Plaintiff medication for his
ADHD, depression, and anxiety (id. at 206), and later noted that
his condition was stable. (Id. at 201.)
Furthermore, both
Plaintiff and his mother stated that the medication helped.
(Id. at 51-52, 135.)
Where, as here, an ailment is controlled
by medication such that it does not cause work-related
limitations, it is not severe.
See Gross, 785 F.2d at 1166 (“If
a symptom can be reasonably controlled by medication or
treatment, it is not disabling.”). The ALJ considered all of
this evidence in reaching a decision. (See Tr. at 17-19.)
Also, the mere fact that Plaintiff was prescribed
medication is not evidence that his mental impairments were
severe.
See Brewton v. Astrue, No. 1:09cv188, 2010 WL 3259800,
at *8 (W.D.N.C. July 26, 2010) (holding that “prescriptions [of
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psychiatric medicine] in and of themselves were not sufficient
to establish that her depression was severe in the absence of
evidence showing that the impairment impacted her ability to
perform basic work activities”) (citing Hensley v. Barnhart, 352
F.3d 353, 357 (8th Cir. 2003)).
In the end, the conservative
treatment — that is, the medication that was prescribed and its
result (Tr. at 201-06) — shows that Plaintiff’s mental
impairments caused less than significant limitations.
See,
e.g., Dettinger v. Astrue, No. 3:09cv401, 2010 WL 2653652, at *8
(E.D. Va. June 30, 2010) (affirming ALJ decision that posttraumatic stress disorder was not severe and disabling where
only conservative treatment was prescribed and the record lacked
evidence of the condition's limiting effects on the claimant).
Therefore, the ALJ’s finding that Plaintiff’s other mental
impairments do not constitute a severe impairment, whether
singly or in combination, is supported by substantial evidence.
B.
Considering Other Mental Impairments Combined with
Mild Intellectual Disability
Plaintiff also contends that the ALJ “failed to consider
the combined effect of Plaintiff’s other mental impairments with
mild mental retardation” in determining that Plaintiff did not
have an additional and significant work-related limitation of
function.
(See Pl.’s Resp. (Doc. 17) at 4-5 (citing 20 C.F.R.
§ 416.923; SSR 85-28, Program Policy Statement Titles II and
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XVI: Medical Impairments that are not Severe, 1985 WL 56856
(1985)).)
This argument too lacks merit.
Plaintiff’s argument on this claim differs from his first
argument in that Plaintiff suggests that, in evaluating whether
Plaintiff meets the requirements of Listing 12.05C, the ALJ
should have recognized that Plaintiff has an intellectual
disability by finding that his other mental impairments,
combined with his intellectual disability itself, meets the
definition of an additional and significant work-related
limitation of function.
However, Plaintiff’s argument is belied by the
Commissioner’s explanation of Listing 12.05C after its latest
revision.
When publishing the revised version of 12.05C, the
Commissioner explained it was always “intended that there be a
separate physical or mental impairment apart from the claimant’s
mental retardation” in order for the ALJ to find that there is
an “additional and significant work-related limitation of
function.”
Revised Medical Criteria for Evaluating Mental
Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50,746,
50,772 (Aug. 21, 2000) (to be codified at 20 C.F.R. pts. 404 and
416) (emphasis added). Courts have similarly applied this logic,
noting that the “finding of severity of work-related limitation
of function . . . must be exclusive of the mental impairment
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finding.”
Maybank v. Astrue, C/A No. 4:08-0643-MBS, 2009 WL
2855461, at *13 (D.S.C. Aug. 31, 2009); see also Banks v.
Massanari, 258 F.3d 820, 824 (8th Cir. 2001).
Based on this guidance from the Social Security
Administration and other courts, this court finds that the ALJ
was not required to determine whether Plaintiff’s other mental
impairments, combined with his intellectual disability, would
have been an additional and significant work-related limitation
of function.
Plaintiff cites Luckey v. U.S. Dep’t of Health &
Human Servs., 890 F.2d 666, 668-69 (4th Cir. 1990) (per curiam),
to challenge the ALJ’s finding that Plaintiff’s impairments did
not meet or equal a listing. (Pl.’s Resp. (Doc. 17) at 7-8.)
In
Luckey, the Fourth Circuit found that the claimant had met
Listing 12.05C’s “additional and significant work-related
limitation of function” requirement.
669.
See Luckey, 890 F.2d at
However, in Luckey, the claimant had a severe combination
of impairments, including back pain, controlled diabetes, a
vision problem, and a history of ulcers, which prevented him
from completing the duties of his previous occupation, namely,
lifting heavy objects.
Luckey, 890 F.2d at 669.
The claimant’s
severe combination of impairments were separate and apart from
the claimant’s intellectual disability.
By contrast, Plaintiff
is attempting to argue in this case that his other mental
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impairments combined with his intellectual disability creates a
severe impairment.
Therefore, Luckey is not on point and is not
controlling or persuasive in this case.
Despite not being required to consider the combination of
Plaintiff’s other mental impairments and his intellectual
disability, the ALJ specifically found, “[e]ven if one considers
the claimant’s nonsevere mental impairments in combination with
his mental retardation, his condition would not meet the
requirements of listings 12.02, 12.03, 12.04, 12.05, and 12.06.”
(Tr. at 19.)
Consequently, the contention that the ALJ failed
to consider the combined impact of all of Plaintiff’s mental
impairments has no merit.
See, e.g., Bledsoe v. Barnhart, 165
Fed. Appx. 408, 411 (6th Cir. 2006).
C.
Dr. Skoll’s Opinion
Plaintiff further asserts that the ALJ’s finding that
Plaintiff’s severe impairment did not meet or equal a listing
requirement is not supported by evidence of record.
(Doc. 14) at 12-13.)
(Pl.’s Br.
Specifically, Plaintiff contends that the
ALJ failed to recognize that a non-examining state agency
medical consultant, Dr. Sharon J. Skoll, opined that the
combination of Plaintiff’s multiple mental impairments were
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severe and resulted in numerous work-related limitations of
function.5
(Id. (citing Tr. at 15-21).)
However, Dr. Skoll in fact said the opposite. (Tr. at 182.)
Within her Psychiatric Review Technique form, Dr. Skoll
indicated that Plaintiff’s mild intellectual disability was a
medically determinable impairment that did “not precisely
satisfy the diagnostic criteria above.”
(Id.)
One criteria Dr.
Skoll thought Plaintiff did not meet was “[a] valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant
work-related limitation of function.” (Id. (emphasis added).)
Without finding this criteria, Dr. Skoll could not conclude, as
Plaintiff suggests, that Plaintiff had met the requirements of
12.05C.
See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“[T]o
show that his impairment matches a listing, it must meet all of
the specified medical criteria.”)
5
Plaintiff also contends that the ALJ erroneously
attributed a statement to the psychological consultants that
Plaintiff’s “symptoms were well controlled in spite of the fact
that he was not taking any medications.” (Pl.’s Br. (Doc. 14) at
12 (citing Tr. at 19).) However, the ALJ never attributed any
such statement to the consultants, but rather concluded that the
reports these consultants generated “indicated” that Plaintiff’s
symptoms were well controlled without medication. The report at
issue reasonably bears this interpretation, as does the record
as a whole, and thus, this finding is supported by substantial
evidence. (See, e.g., Tr. at 168-71 (stating that Plaintiff
denied depression and displayed no tics despite having not been
on medication for years).)
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Therefore, while Dr. Skoll opined that Plaintiff had the
following medically determinable impairments: ADHD, R/O Paranoid
Schizophrenia or Schizoaffective Disorder, and Social Anxiety,
(Tr. at 179-80, 183), she did not believe that those impairments
imposed “an additional and significant work-related limitation
of function.”
As such, Dr. Skoll did not believe that Plaintiff
satisfied Listing 12.05C.6
(Tr. at 182.)
Accordingly, the ALJ’s
finding is supported by Dr. Skoll’s opinion rather than undercut
by it.
D.
Interplay of Step Two Analysis and Mental RFC Finding
Plaintiff uses the ALJ’s own mental RFC determination as a
means of undermining her determination that Plaintiff does not
suffer from additional and significant work-related limitations
of function.
(Pl.’s Br. (Doc. 14) at 14-15.)
In support of this argument, Plaintiff points to Social
Security Ruling 85-16 (“SSR 85-16”), which provides:
6
Plaintiff’s Response to the Commissioner’s Motion further
contests this interpretation of Dr. Skoll’s opinion.
Specifically, Plaintiff points to the fact that in evaluating
his limitations, Dr. Skoll cites the listing codes of
Plaintiff’s mental impairments. (Pl.’s Resp. (Doc. 17) at 7.)
According to Plaintiff, this “reveal[s] that [Dr. Skoll]
considered the numerous work-related mental limitations to be
the product of all of Plaintiff’s mental impairments combined.”
(Id.) Again, however, while Dr. Skoll may have identified
various mental impairments, she did not conclude that Plaintiff
satisfied Listing 12.05C, which means that she concluded that
Plaintiff had not demonstrated that his various mental
impairments constituted an additional and significant workrelated limitation of function.
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The evaluation of intellectual functioning by a
program physician, psychologist, ALJ, or AC member
provides information necessary to determine the
individual’s ability to understand, to remember
instructions, and to carry out instructions. Thus, an
individual, in whom the only finding in intellectual
testing is an IQ between 60 and 69, is ordinarily
expected to be able to understand simple oral
instructions and to be able to carry our these
instructions under somewhat closer supervision than
required of an individual with a higher IQ. Similarly,
an individual who has an IQ between 70 and 79 should
ordinarily be able to carry out these instructions
under somewhat less close supervision.
SSR 85-16, Program Policy Statement, Titles II and XVI: Residual
Functional Capacity for Mental Impairments, 1985 WL 56855 (Jan.
1, 1985).
Plaintiff argues that the ALJ must have recognized an
additional severe limitation beyond mild intellectual disability
because the mental RFC calculation includes limitations not
normally associated with intellectual disability, including an
inability to tolerate workplace changes; an inability to
interact with the general public, coworkers, and supervisors;
and an inability to perform mathematical computations.
(Pl.’s
Br. (Doc. 14) at 14-15.)
This argument is not persuasive.
First, as noted, the
ALJ’s mental RFC calculation limited Plaintiff to follow only
short, simple instructions; make simple work-related decisions;
tolerate few workplace changes; tolerate occasional interaction
with the general public, coworkers, and supervisors; should not
be required to read instructions or write reports; and should
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not be required to perform mathematical computations.
21.)
(Tr. at
In articulating Plaintiff’s mental RFC as such, the ALJ
was meeting her obligation under Social Security Ruling 96-8p
(“SSR 96-8p”)
to formulate an RFC with due consideration to all
of Plaintiff's impairments, including those that are not severe.
See SSR 96–8p, Policy Interpretation Ruling Titles II and XVI:
Assessing Residual Functional Capacity in Initial Claims, 1996
WL 374184 (July 2, 1996) (“In assessing RFC, the adjudicator
must consider limitations and restrictions imposed by all of an
individual's impairments, even those that are not ‘severe.’”).
Moreover, there are numerous situations where an RFC may have
limitations that appear to be accommodating impairments that the
ALJ finds to be nonsevere.
See, e.g., Timmons v. Astrue, 360
Fed. Appx. 984, 987 (10th Cir. 2010) (rejecting argument that
RFC prohibiting exposure to respiratory irritants undermined
earlier 12.05C finding that claimant’s asthma imposes only
minimal limitations); Doyle v. Astrue, No. CIV–10–795–STE, 2011
WL 3299088, at *5-6 (W.D. Okla. Aug. 1, 2011) (concluding that
mental RFC imposing social restrictions did not undermine 12.05C
analysis concluding that claimant had no additional severe
impairment).
Second, nothing in SSR 85-16 states that a limitation to
simple instructions and close supervision are the only
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limitations that could be caused by an IQ score of 70.
85-16, 1985 WL 56855, at *3.
See SSR
Therefore, including other
limitations in the RFC without finding certain impairments as
severe does not conflict with SSR 85-16.
Plaintiff has offered
no meaningful support for the proposition that it was legal
error for the ALJ to conclude that a person with mild
intellectual disability could also have an RFC with social or
stress-related limitations, without any other corresponding
severe impairments.
In a permutation of this argument, Plaintiff again
references Dr. Skoll’s mental RFC assessment.
Plaintiff points
out that Section I of the Mental RFC Assessment worksheet
completed by Dr. Skoll indicates that Plaintiff was “moderately
limited” in ten of twenty categories and “markedly limited” in
his ability to interact appropriately with the general public.
(Pl.’s Br. (Doc. 14) at 8 (citing Tr. at 192-93).)
However, Dr.
Skoll’s Section I findings in her mental RFC worksheet were
preliminary to her Section III conclusions that Plaintiff could
carry out simple, routine, repetitive tasks in a low stress, low
production environment, with limited social interaction, (Tr.
194).
See, e.g., Hayes v. Colvin, No. 1:10CV379, 2013 WL
2456111, at *4–5 (M.D.N.C. June 6, 2013) (concluding that
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Section III rather than Section I constitutes the RFC
assessment).
In any event, this argument fails for the same reasons set
forth above, namely, that Dr. Skoll specifically concluded that
Plaintiff did not satisfy the 12.05C criteria.
See, e.g.,
Doyle, 2011 WL 3299088, at *5-6.
III. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff's Motion for
Judgment Reversing the Decision of the Commissioner (Doc. 13) is
DENIED, that the Commissioner’s motion for judgment on the
pleadings (Doc. 15) is GRANTED, and that this action is
DISMISSED WITH PREJUDICE.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 30th day of March, 2015.
_______________________________________
United States District Judge
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